NISAR HUSSAIN KHAN, J.--- Petitioner seek issuance of an appropriate writ to the effect that the action of respondents of dissolution of Sarhad Development. Authority, a statutory body, be declared as illegal without jurisdiction and without lawful authority and consequently services of the employees may be saved, with further prayer that the establishment of Khybcr Pakhtunkhwa Economic Zones Development and Management Company (EZDMC) be declared as illegal, without jurisdiction and without lawful authority having been created with mala fides for political consideration and ulterior motives. During the pendency of writ petition, additional prayer was sought to be added, vide C.M.No,620/2016 for declaration that the dissolution of Sarhad Development Authority by any order or Notification as illegal, without jurisdiction and without lawful authority being based on mala fides and ulterior motives for misappropriation of public property.
2. Precisely stated facts of the instant petition are that all employees of SDA in person as well as through the President of their Federation have filed instant petition against dissolution of the Sarhad Development Authority and creation of a new entity namely Khyber Pakhtunkhwa Economic Zones Development and Management Company (EZDMC). Main grievance of the petitioners is that on creation of Public Limited Company, the assets of the Sarhad Development Authority (SDA) worth billions of rupees are being transferred to the limited company while services of petitioners, employees of the SDA, are being dispensed with.
3. The official respondents submitted in their comments that the employees of SDA shall be treated under the provisions of the SDA Act, 1973 and at the same breath in Para-2(i) of: their comments it is stated that the Provincial Government shall devise proper policy/criteria for laying off the existing employees of the SDA. On the point of dissolution of the SDA, it is averred by the official respondents that Section 31 of the SDA Act, 1973 empowers the Provincial Government to wind up the authority and by their various assertions, the official respondents have refuted the objections raised in the petition.
4. The Khyber Pantunkhwa Economic Zones Development and Management Company (EZDMC) filed C.M. No,1699-P/2015 for its impleadment in the writ petition being necessary party, the grounds whereof elaborately provided in the C.M., which was allowed by this court on 23.11.2015. The Company filed its detailed reply to the averments of the writ petition along with documents and material in support of establishment of the Company. It is averred at the very outset by the Company in its reply in preliminary objection, that the SDA has ceased to exist, so this petition has become infructuous by virtue of letter of the Provincial Government dated 27.4.2015, issued in terms of Section 31 of the SDA Act 1973. It is further averred that dis-investment cell in furtherance of their object of transfer of assets of the SDA to the Company has been established and the Board was re- constituted to implement the TORS of disinvestment Whereas mandate of Board is very specific to dis-invest the assets of the SDA and effectively hand over the same to the Company. It is further stated in their reply that petitioners are no more employees of the SDA and they are just strangers because their relationship of employees and. employer has ceased to exist. It is also averred that dissolution of SDA and creation of public limited company and consequential transfer of assets of the SDA to the company is a policy matter of the provincial government which is not amenable to the writ jurisdiction of the High Court. Beside that objective of creation of public limited company and its future economic prospects have also been highlighted.
5. Once case was exhaustively argued by learned counsel for the parties and the learned Advocate General on behalf of the Provincial Government and he sought time to clarify as to whether disinvestments cell can be created in presence of Board of Directors of the Sarhad Development Authority, constituted under the SDA Act 1973. On the next date, the learned Advocate General filed C.M. No,180-P/2016 along with some supportive documents and submitted at the bar that SDA has not been dissolved, which is still functioning and its employees are still in its employment. When he was confronted with the question of fate and status of the employees in case SDA is disbanded in terms. of section 31 of the ibid Act, he once again sought time to submit better statement after due consultation with the quarter concerned. On the next date, he produced letter No,SO(Lit)(IND)2- 13/1/2015, dated 15.2.2016 issued by the Department of Industries, Commerce and Technical Education, Government of KPK, stating that all the employees of SDA shall be retained and adjusted. as per policy of the Provincial Government. However, since the letter was signed by the Section Officer, so he sought time to re-submit the same after signing it from the Secretary. concerned. Later on Letter bearing No, No,SO(Lit)(IND)2- 134/2015, dated 15.2,2016 signed by .the Secretary, Industries, Commerce and Technical Education Department, Government of KPK, has been filed along with C.M.No,528-P/2016 which states that DA has not been dissolved and SDA Board has been constituted by the Chief Minister to run day to day affairs of the SDA. It is further stated that all employees of SDA are in service and n case of dissolution of SDA, all its employees will be retained and adjusted as per policy of the provincial government. It is further stated in the same letter that EZDMC has been constituted under Section 5 of the Company's Ordinance, 1984 to facilitate SDA in the establishment of Special Economic zones in the Province.
6. Learned Advocate General submitted at the bar that it is avowed resolve of the Provincial Government that it shall proceed with the matter in accordance with law and no adverse action shall be taken against the employees. When learned counsel for petitioners was confronted with this outright statement of the learned Advocate General, he submitted that let this petition be decided on merits.
7. Pivotal question involved in the instant petition is dissolution of SDA, consequential laying off of its employees, and establishment of public limited company, namely EZDMC and transfer of assets of SDA to EZDMC. So far as the establishment of Public Limited Company is concerned, that is a matter falling within the domain of the Provincial Government relating to a policy matter and the Provincial Government is competent to frame the policy and consequentially implement the same but within parameters of law. Most contentious issue before us is winding up of SDA and consequential dispensing with the, services of its employees and transfer of assets to a public limited company.
8. Sarhad Development Authority was established under Section 3 of the KPK SDA Act (Act IX of 1973) of 1973. The object of its establishment is provided in its preamble which contemplates its purpose to promote economic and industrial development of KPK and the matter ancillary thereto.
All the affairs of the authority were to be managed and administered by the Board of Directors headed by its Chairman, who were to be appointed by the Government. The authority was vested with power to employ such officers, experts, advisors, consultants and other persons as may be necessary by virtue of Section 10 of the ibid Act. The Government, pursuant to Section 29(2)(c) of the Act was obliged to frame rules for the terms and conditions of service of officers, advisors and employees of the authority, apart from other ancillary matters. Since the promulgation of SDA, Act till 2015, the authority failed to comply with the mandate of Section 29 and its employees were governed by the Rules, not framed by the government in accordance with law. However, W.P.
No,3258/2013 filed by an employee, aggrieved of order of the competent authority, came up for hearing before this Court, and it was allowed. The authority filed Civil Petition No,84-P of 2015 against the judgment of this court which was dismissed on 25.3.2015 by the august Supreme Court and the authority was directed to frame rules relating to the terms and conditions of services of its employees within three months. In compliance with the direction of the august Supreme Court, the government framed Rules called as KPK Development Authority Service Rules, 2015 vide notification dated 23.9.2015 which are now part of the instant petition. Rule 13 specifically provides that all those matters not specifically provided in the Rules, shall be governed by the rules made by the government relating to such matters for civil servants. After promulgation and framing of Rules, services of the employees have attained the statutory status which my not be dispensed with through an ordinary administrative order by just a stroke of pen.
9. Though a letter, signed by the Secretary Industries and Commerce has been produced, wherein, it is pledged that no adverse action shall be taken against employees of S.D.A. Rather they shall be retained or adjusted in other department. We are of, the considered view that they are to be provided statutory protection through a legal instrument, as was accorded by Central Government to employees of Telephone and Telegraph Department in Pakistan Telecommunication Corporation Act, 1991 followed by Pakistan Telecommunication Corporation (Re-organization) Act (XVII of 1996). More than three hundred 'employees are striving for their financial and social survival, who have rendered their service of best and prime part of their lives for S.D.A. They may not be thrown out of service in mid of their career when they will not be acceptable to any other department at this stage. The object of establishment of (EZDMC) as elaborately highlighted by the company is to better utilize the resources and ultimately achieve goal of prosperity of the Province.
Provision of employment, education and free health has always remained the prime object of a welfare. state. Accumulation of wealth in state kitty, by depriving its subjects, of their source of earning has never ever been policy nor philosophy of good governance. So on the same premise it cannot be acceded to.
10. Though authority of winding up of the SDA provided under Section 31 of the Act, has been vested in the Provincial Government but the authority is not unfettered .of legal chains. The authority which ha, been established by an Act of the Provincial Assembly, though may he wound up by the order of the government but in accordance with the Constitutional mandate relating to the conduct of the business of the provincial government, provided under Article 139 and Rules frame hereunder by having proper recourse to the legal procedure.
11. So far as the dissolution of the SDA and consequential transfer of its assets to its company, is concerned,. former part of it relates to conduct of business of provincial government as stipulated in Article 139 of the Constitution and rules framed thereunder as KPK Government Rules of Business, 1985. So far as later part, regarding transfer of assets of the SDA to the public limited company is concerned, it is specifically protected under Article 173 of the Constitution. Particularly, Article 173(5) of the Constitution stipulates that the transfer of land by the Federal Government or Provincial Government shall be regulated by, law. It is earnestly urged by the petitioners that valuable properties of the SDA, being an entity of the Provincial Government has been transferred or proposed to be transferred to a public limited company' through letter simpliciter, which in our considered opinion, is an illegal exercise of authority which cannot be undertaken by violating the mandate of the Constitution. The Law Department has rightly declined to be part of this illegal exercise. Public assets cannot be transferred or disposed of through a simple letter of a Secretary.
All government actions are taken in accordance with command of Constitution as well as law and rules. However, the learned Advocate General, sensing the severity of situation and realizing the gravity of legal complexities, involved in the matter, has frankly stated at the bar that every action, whatsoever, shall be taken in accordance with law. In view of this clean breast statement, we need not discuss the matter in detail any more and: dispose of the instant petition in the light of statement of the Advocate General that they shall proceed in the matter in' accordance with provision of Constitution, law and rules. The employees shall also be provided a legal protection through statutory instrument, as observed in para-9 of the judgment, because the statement of learned Advocate General, Khyber Pakhtunkhwa and letter of Secretary Commerce and Industries relate to policy of the Government, which may be changed at any time by any incumbent but law would vest them with some justifiable rights.
12. This petition stands disposed of in the above terms along with C.M. applications.